For more than a decade, debates have raged over 'biopiracy', 'rights of indigenous farmers', 'seed-saving', patents on crops, breeder's rights, and investment in agricultural research. All of these issues, and more, are centrally involved in this particular controversy.

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Alleged biopiracy: Vikings and Don Quixote

- Bert Visser

On March 27 of this year AgBioView published an extensive accusation by David Wood about a band of conspirators, including the Norwegian Government, the UN Food and Agriculture Organization (FAO) and the Global Crop Diversity Trust, who allegedly were out to snatch the world's seeds by a master plan. The plot was played out in Svalbard, with the victims of the treachery being both the USA and developing countries.

Whereas this 5-page long accusation contains a large number of false claims (far more than could be addressed here), I think at least some major falsifications require correction. The reason I am responding to this litany against "thieves," is that I think injustice is done to decent people engaged in a positive exercise. Many issues are distortedly and falsely presented. And as a result, stakeholders or others only tangentially involved in the subject may be misled. I am one of the stakeholders - I serve as the director of a major national genebank (the Netherlands). I have represented my country, and at times served as spokesperson for the European Region, in negotiations on the implementation of the International Treaty on Plant Genetic Resources, I am trained as a geneticist, and have been professionally involved in the field for over 10 years. Curently, I serve as the chair of the FAO Commission on Genetic Resources for Food and Agriculture. I am not paid by the Norwegian government, nor by FAO or the Global Crop Diversity Trust.

Wood takes offense in the opening of the Svalbard Seed Vault, a facility established by the Norwegian government providing all collection holders in the world with the opportunity to store a safety back-up of their collections in Svalbard, under permafrost conditions (with temperatures further lowered to -18C) and in one of the most stable countries in the world. Wood maintains that "seed professionals know that the Svalbard Vault is far removed from the practical reality of seed storage", since "it is remote, impractical to service, does not feed into global networks of sample evaluation and crop breeding" and would be "an expensive distraction from the ongoing and low-cost duplication". In fact, these remarks are either irrelevant or false.

As a seed expert, it is my understanding that the remoteness of Svalbard is exactly one of its strengths as it is unlikely to be threatened by the natural or human-made disasters that have recently harmed collections in the Philippines, Iraq, Afghanistan and the Solomon Islands, for instance. On what basis can I make such statement contradicting David Wood's opinion? Because my colleague seed experts have spoken! The 150+ country FAO Commission on Genetic Resources officially welcomed the establishment of the Vault. And, countries are beginning to send their seeds, amongst them the U.S., Canada, Pakistan, Germany, the Netherlands, the Nordic countries, the SADC countries of southern Africa, Kenya, the Philippines, Russia, and the impressive collections held by the CGIAR. For David Wood's assessment to be correct, everyone else has to be wrong.

But, back to his argument about the practical deficiencies of the Seed Vault: Since seeds stored there are safety duplicates (in fact preferably even triplicates in most cases), it does not matter that transport lines are long, since we hope not to need these stocks except in real emergency situations when our own copies have been lost. Safety duplications were never meant to feed into evaluation and crop breeding. For that purpose, the active collections are maintained by the providers of the Svalbard seed stocks, who remain the legal owners of the stocks in Svalbard. However, as a true modern-day Don Quixote, Wood seems to need such falsications in order to frame and justify his accusations concerning the "real reasons" behind Svalvard: one big thievery operation, in which the Norwegian government and FAO have conspired to trick the world and gain control of global crop diversity. David Wood implicitely asserts that he has uncovered the plot, invisible to 150+ countries, their scientists, government officials and lawyers.

A good crime needs a plausible motive. What is the centerpiece of the motivation for David Wood's accusations: "The Norwegians are after the control of our crop seed - all of it." Everyone who has followed Norway's role in the discussions and negotiations for the conservation and utilization of or plant genetic resources realizes that such a weird accusation cannot be true and moreover is a highly unlikely motive for a country such as Norway. Due to its geographical location, Norway is a country in which agriculture plays a marginal role. Less than two per cent of its population consists of farmers, and the agricultural product is only 0.5 per cent of its gross domestic product. In other words, Norway has very little if anything to gain from the alleged thievery of seeds. Indeed most of the seed samples being sent to the Seed Vault could not be grown in Norway anyway. Can anyone really imagine Norway violating the contract it is signing with depositors and then actually taking steps to gain global advantage with a pillaged resource?

What did Norway's master plan look like in the mind of David Wood? "The chosen vehicle was the now-operational Treaty on Plant Genetic Resources for Food and Agriculture." Whereas Wood depicts the Treaty as a faltering mechanism to close access to the world's seeds, the Treaty whose membership has grown exceedingly fast, was established to achieve exactly the opposite. Without the Treaty, there would have been no international consensus on how to provide access to the seeds of crops on which the world's food security depends. Before the coming into force of the Treaty there were serious reasons (and factual data) to believe that international seed exchange for the purpose of research and breeding was drying up, precisely because many stakeholders were at a loss on how to deal with access to their collections. It is the major value of the Treaty that it established consensus on a system by which international seed exchange could continue. The so-called free seed that Wood is alluding to, in reality had become a fallacy long ago and is only something of the past.

But that still does not answer the question how the Norwegian government could misuse such an important international agreement to maintain access to seeds for its own sinister plans. Here comes the crux, and the third party in the alleged conspiracy. The Global Crop Diversity Trust, not an NGO as Wood maintains, but an independent international organization under international law, has financed regeneration and transport of seeds to allow the storage of safety duplicates in Svalbard for those collection holders who believe safety duplication is important. In the mind of Wood, this was the carrot, whereas in reality Svalbard could never function without the financial support by the Trust. The carrot was to cover up a trick, which is that any depositor (i.e. any collection holder sending seed to Svalbard) would have to sign the depositor agreement. This agreement incorporates agreed text from the International Treaty, which is not a charter for biopiracy, as Wood maintains, but an international agreement that has achieved broad and growing support. The text of the Seed Vault's depositor agreement is not outrageous banditry by Norway, but the simple right of Norway to give highest priority to the storage of seeds that will remain available in future under internationally-agreed terms for research and breeding to the benefit of all mankind in Svalbard. The cost of construction of the facility, $9 million, was paid by Norway. Deposits are voluntary. Storage is free. So where is the banditry? Where is the biopiracy?

Which mischievous role the FAO played in the plot is unfortunately not explained to the reader already astonished about all these crimes.

According to Wood, "developed countries will suffer" and the plot "will damage developing countries". Upon close reading, his claim is that both US plant breeders and thousands of others worldwide would loose free access to USDA seeds forever. This is outright nonsense. According to the Treaty that Wood seems to detest so much, access is free and facilitated. Only if commercial benefits are obtained by preventing others from using improved seeds for further research and breeding, would this trigger a modest fee, to which all 116+ Parties to the Treaty and also the global seed industry has agreed. Such benefit-sharing would serve to conserve and develop plant genetic resources which are otherwise threatened.

In fact, Wood's testimony seems to be directed against the International Treaty. But the Treaty does not ask a fee from plant breeders, unless their multinational boards of directors and shareholders earn a lot of money from farmers due to limiting access to improved seeds for research and breeding. The Treaty keeps our plant genetic resources in the public domain, according to one of its key articles, opposite to what Wood is claiming. Wood can only assert such claims emotionally, because nowhere does he actually cite the words of the Treaty. If he would, his arguments would fall apart and he would present himself as a Don Quixote fighting against the Vikings who do not exist and against widmills and for a cause that only occurred in his own mind.

I regret the confusion David Wood tries to create and the way in which he questions the motives and intentions of honorable people, institutions and countries. It's neither accurate, professional or nice. Perhaps this response, in part, will serve to set the record straight.

Dr Visser raises a smoke-screen to avoid giving a clear answer to the several questions I raised over the hidden conditionality for depositing seeds in the Svalbard Seed Vault. My main charge, against Norway, was that the Svalbard Agreement was an attempt to place all deposited samples under the FAO Treaty by stealth. Dr Visser's response - buried in his text - confirms my claim but is still evasive: "The text of the Seed Vault's depositor agreement is not outrageous banditry by Norway, but the simple right of Norway to give highest priority to the storage of seeds that will remain available in future under internationally-agreed terms for research and breeding to the benefit of all mankind in Svalbard." But why did Norway hide this in an over-complex agreement? Why did Norway not explain this major change of jurisdiction over global genetic resources to the world media gathered for the opening of the Svalbard vault? Why the total lack of transparency?

Norway should have opened Svalbard with transparency and honesty by limiting storage in Svalbard to samples originating from and deposited by the 116 countries that had ratified the FAO Treaty. Norway did not do this. Instead, there was a massive media distraction at the opening of the Svalbard Vault; promises of secure seed storage for all; and no mention whatever that buried in the Depositor Agreement was legal jargon that imposed far-reaching changes on future global seed supply. The fact is that in future all samples from all depositors would be covered by the FAO Treaty. This was hidden in Article 7 of the Agreement. Dr Visser nowhere disputes this and other facts I presented. He blusters to continue to hide the truth, which is that Norway has no right whatever to transfer jurisdiction over global plant resources to the FAO Treaty in this devious way.

Dr Visser also admits - opaquely - my second charge: that U.S. plant breeders will have to pay the tax. He says: "Only if commercial benefits are obtained by preventing others from using improved seeds for further research and breeding, would this trigger a modest fee, to which all 116+ Parties to the Treaty and also the global seed industry has agreed." So if in future a U.S. breeder uses samples from the USDA collections to develop new varieties, this could trigger a tax payable to FAO. Yet the U.S. has not ratified the Treaty. No-one has explained the trick of the Svalbard Depositor Agreement to U.S. plant breeders. Norway and Dr Visser might recall that "no taxation without representation" was once the justification for a war.

The Svalbard deception impacts not only on U.S. breeders but most breeders using the hitherto free access collections of USDA and the CGIAR. The deception is even discriminatory. Countries such as Norway using the UPOV 1978 form of Plant Varietal Rights legislation will not pay the Tax on varieties protected under this legislation (as UPOV 1978 does not prevent `further research and breeding').

So Dr Visser has admitted - with obvious reluctance and using FAO-speak - two of the charges I raised against Norway and FAO. But there are serious remaining charges he ignores. And the Svalbard trick is not the end: there is more genetic abduction to come as modern Rome treats the rest of the world as ancient Rome treated the Sabines. We need to throw some light of why the Treaty adopted secret tactics to monopolize global plant resources (if only to prevent any more deviousness).

Problems with the Treaty

The International Treaty on Plant Genetic Resources for Food and Agriculture (the FAO Treaty) came into operation four years ago. It covered a limited number of important crops (the so-called Annex 1 crops) and has a weak record of attracting members (116 to date) and new membership has dried up. The Treaty mandated a global tax for conditional use of samples. This tax, depending on the use of samples by plant breeders, will take many years to come on stream.

Crucially, the tax will be paid to FAO, rather than the country from which the useful samples came: the Treaty does not recognize `country of origin'.

According to the Treaty Secretary, the Contracting Parties had contributed only some 10 percent of the funds needed for the Core Administrative Budget of the International Treaty foreseen for the 2006/07 period. The International Treaty "was in a critical make-or-break period" (Report of the 11th meeting of the FAO Commission (2007) para. 77 at ftp://ftp.fao.org/ag/cgrfa/cgrfa11/r11repe.pdf )

In other words, three years into its life, the FAO Treaty was failing: limited samples of few crops to tax; low membership; and no funding stream. After long and arduous negotiations leading to the Treaty, text changes to allow the Treaty to attract new members would take aeons; adding new crops to the list in Annex I was also not a quick option.

Imperial expansion

The original intention of the Treaty was reasonable: parties (restricted to nation states and the EU) would pool their public genetic resource collections in a `multilateral system'. Plant breeding in developed countries would pay for conditional access to samples and the proceeds would help agriculture in developing countries.

Expansionism set in before the Treaty was ratified. All the very important genetic resource collections of the CGIAR institutes were included in the Treaty, although the CGIAR could not be a partner. These resources were included forever (unlike national collections, which could be withdrawn). Also they covered hundreds plant species - well beyond the cover of Annex I which had been negotiated by countries and accepted by the Commission.

Before the Treaty ink was dry, there was another expansion (which was not specifically required by the Treaty itself). The CGIAR would now place under the Treaty all `products of research', with retroactivity. All the wheat, rice, sorghum, potatoes and lots more from over 40 years of donor-funded research would generate income for the Treaty. This was a big potential earner for FAO, as, for example, a large portion of North American wheat varieties had derived from CIMMYT `products of research'.

Not content with this major coup, FAO decided to expand its seed empire further. The FAO Commission endorsed a Seed Vault on the Norwegian island of Svalbard to store samples of most of the plant seed resources on Earth. All these seed samples - plans were for millions - would be covered by a Norwegian Depositor Agreement that placed all deposited samples under the FAO Treaty.

The Svalbard snatch

The Svalbard snatch was made possible by the past structure of global seed storage, which had evolved over a century from botanic garden collections dating back several centuries. From the 1970s, as collecting crop seed gathered pace, mainly in developing countries, a pattern was adopted. A multi-crop collecting expedition would divide samples into three equal parts. One part would remain in the country of collection, hopefully, but not often, to be stored in adequate cold storage; one part would be divided between relevant crop institutes, very often of the CGIAR, to be used by their plant breeders; a third part would be stored and gradually used in breeding, usually in a developed country, often that which had funded the collection. Every party could further distribute seed without formality.

This seed collection-storage-utilization system was effective and underpinned the Green Revolution in wheat and rice and much else. It was based on trust and paid close attention to rights of the country of origin and the need of its farmers for reinstatement of lost varieties: duplicate samples would always be returned to the country of origin when requested.

But the system was not ring-fenced against FAO's seed expansionism, based on the need for more funding for the FAO Treaty. FAO knew from its documentation that many or most seed collections originally from developing countries were stored in other countries beyond control of the country of origin. Even if countries of origin were not interested in accepting the FAO Treaty, their seed could be included in the Treaty by what can only be described as trickery.

The Svalbard Vault purported to be secure storage of world crop and pasture seed, under the framework of the FAO Treaty. But in reality it was a mechanism to transfer vast collections into the terms of the FAO Treaty. Some of the deposited samples - for example, from the excellent stores of U.S. Department of Agriculture - were certainly not threatened (the USA is not even in the Treaty so this was a bonus indeed for FAO but not for U.S. plant breeders).

Why the Treaty must be scrapped

Dr Visser's account of the FAO Treaty is a fairytale, ignoring reality. The Treaty is not needed. There already is an international consensus on access to plants through the Convention on Biological Diversity (CBD), predating the FAO Treaty by more than 10 years, and now with 191 members (equal to the membership of the entire FAO). In contrast to the CBD, the FAO Treaty membership is stuck at a lower-than-viable116. There were only five ratifications last year and none this year: a serious lack of acceptance. Faced with no more countries ratifications and therefore no more samples to tax, Svalbard II was dreamt up in Rome as a pitfall trap for global genetic resources (for twenty years there has been a functioning but little used Svalbard I that has been quietly forgotten). This deception alone is reason for countries to abandon an already failing Treaty.

Dr Visser expects us to believe that the Treaty has reversed the drying-up of international seed movement. This confuses new collecting with the movement of trial samples and is neither true nor relevant. We know that there are fewer new collections added to the world stock as the years go by but this is partly due to the NGO `biopiracy' campaign and partly because there were already millions of samples in store. New collections were not a serious bottleneck to further breeding: we had most of what was needed.

In its haste to line its pockets with a new international tax FAO has focused on the wrong bottleneck and promised to increase new collections. However, developing countries are now damaged not by the lack of new collections, but by the lack of new breeding and trial material. The bottleneck in breeding was caused by severe underfunding for national and CGIAR breeding, worsening over the past twenty years. The best way to increase seed movement is to increase crop and pasture breeding and to distribute more trials internationally. No country will refuse the movement of international breeding lines: their future food supply depends on it. The Treaty is redundant for this international varietal movement.

For example, despite funding cut-backs for breeding, there is still effective seed movement internationally. And this is value-added seed, the results of skilled breeding. FAO figures show this. The greatest bulk of seed movement reported to the last meeting of the Treaty was 97,669 improved materials from the CGIAR into international trials (over a period from 1January to 1 August 2007). This was `business as usual' for the CGIAR and totally independent of the Treaty.

In contrast to the wholesale movement of improved samples, new collecting under the FAO Treaty has plummeted. In 1997, four years after the CBD came into operation, CGIAR new collections were well over 12,000 a year. But over a seven month period last year new CGIAR collections under the FAO Treaty totaled only 2098. ftp://ftp.fao.org/ag/agp/planttreaty/gb2/gb2i11e.pdf These are appalling figures for new CGIAR collections and show that the FAO Treaty has failed in one of its main objectives. The failure to address the real needs of breeders in a further reason why the Treaty should be scrapped.

Attacking breeders will not help restore confidence in the failing Treaty. The penultimate paragraph of Dr Visser's account is an unjustified tirade against plant breeders, whose "multinational boards of directors and shareholders earn a lot of money from farmers due to limiting access to improved seeds for research and breeding." This money, earned through research and adding-value to varieties - including by U.S. colleges and universities under the Bayh-Dole Act of 1980 http://www.ilr.cornell.edu/cheri/conf/chericonf2003/chericonf2003_09.pdf ] - is to be taxed by FAO. Does FAO want the headline: "U.S. Colleges Forced to Pay Tax to the U.N."?

Farmers worldwide should be allowed to choose, and pay for, what they perceive as quality seed or good varieties. Without private-sector investment there would be far less plant breeding and no Bt cotton miracle in India. Is this negative view of plant breeding FAO policy or some personal crusade by Dr Visser to undermine agricultural development?

It is not the job of FAO - acting as it is through Norway to establish a monopoly on all plant genetic resources - to throw stones at private breeders and national patent law. Through the Treaty FAO will dip into the same breeders' pockets to fund a new Roman Empire of seed: this is hypocrisy.

The expansionist FAO Treaty is grossly inequitable to many countries such as Mexico who are members of the Commission but not parties to the FAO Treaty. As I pointed out, already 56,709 samples of Mexican origin have been deposited in Svalbard - but not by Mexico. Samples from Mexico, wherever they are now, should, if used under the terms of the Treaty, bring cash benefits directly to Mexico and Mexican farmers and not to the Treaty and FAO. This should apply to all countries who do not yet accept the Treaty (including Mexico, China, Nigeria and the Russian Federation). These countries and others that have been damaged by Svalbard should complain long and hard to their representatives at the FAO Council and Conference in November this year.

Other than the greed of FAO, there is no reason whatever why benefits directly to country of origin should not be implemented immediately, based on the existing and excellent documentation. However, if it were to be implemented, countries would leave the Treaty in droves, rather than see funding go to FAO.

Farmers' rights are compromised under the Treaty. Indeed, the Treaty throws the rights of farmers out of the window. Dr Visser writes that the Netherlands seed store will place samples in Svalbard. Yet if a farmer in Mexico asks the Netherlands genebank to return a duplicate of a sample obtained from the farmer years before, the terms of the Treaty and the Svalbard depositor agreement will oblige the Netherlands to force the farmer to sign away any property rights to the variety. In my view, farmers donated their seed samples to a `bank': deposits should be returned without any conditions. Before the Treaty this return to country and farmer of origin was standard practice by the USDA and the CGIAR: not any more.

The Treaty has plans to further expand its empire. The Global Crop Diversity Trust works from offices in FAO. The GCDT is now embarked on a further round of genetic imperialism. Most of the funding to the GCDT will be spent not on Svalbard but on a series of crop networks covering our most important crops, beyond the list agreed by negotiators of the Treaty (for example, tomato). (http://www.croptrust.org/main/strategy.php)

As a condition for obtaining GCDT funding, participants in conservation and utilization networks are required to place collections - including improved lines - under the terms of the FAO Treaty. (http://www.croptrust.org/documents/web/Guidelines%20Crop%20Strategies_Feb06.pdf) With the usual Roman approach to transparency, this requirement is buried in a long document (Annex 1, Criteria 3, third bullet point - the need for "an agreement with the Governing Board of the International Treaty").

Recognition of `Country of Origin'

The Treaty should be scrapped above all because it continues to ignore `country of origin'. By ignoring the country of origin of millions of plant samples the FAO Treaty becomes discriminatory, divisive, and obsolescent. There are emerging national policies that (fortunately) threaten the FAO Treaty. I give three examples: two from European Governments and one from EU Botanic Gardens.

This indicates that "...the main objectives pertaining to the policy on genetic resources are based upon the Convention on Biological Diversity (CBD)." Further, "As a party to the CBD, the Netherlands acknowledges the national sovereignty of countries regarding their genetic resources. The Netherlands fully complies with the obligations under the Convention." ... "Another agreement is that countries of origin will receive an equitable share of the benefits produced by the use of their genetic resources."

All of this is welcome, but none of it is compatible with the cavalier attitude of the FAO Treaty and the Netherlands Genebank. Rights over deposits in Svalbard totally ignore the country of origin of genetic resources and thereby undermine rights of countries of origin.

Norway itself is recognizing `country of origin' (but apparently not the Norwegian Ministry of Agriculture, responsible for Svalbard).

Berthe Ivars, a Senior Adviser to the Norwegian Ministry of Environment, reported a change in Norwegian patent law. This is critical for the Treaty, as only plant patents will trigger the FAO tax (if we believe FAO - given the current mission creep I have my doubts). Ms Ivars reported that:

"Norway has recently amended the national patent law to support compliance with the CBD and prior informed consent (PIC) of the Country of Origin/Contracting Party providing the resources."

Specifically the law (in translation) requires that:

"If the providing country is not the same as the country of origin of the biological material, the application shall also inform on the country of origin. The country of origin means the country from which the material was collected from in-situ sources. If it follows from national law in the country of origin that access to biological material shall be subject to prior consent, the application shall inform on whether such consent has been obtained."

As the FAO Treaty fails to recognize the country of origin of samples it is now at odds with Norwegian patent law. Indeed, the Svalbard Depositor Agreement itself may be illegal under Norwegian law.

The approach adopted by EU Botanic Gardens is also superior to the FAO Treaty. This, again, recognizes the CBD as the source of benefit-sharing.

EU botanic gardens are strongly advised both on grounds of practicality and in line with the spirit of the CBD to: "treat Plant genetic resources acquired prior to the CBD coming into effect as Plant genetic resources acquired after the CBD came into effect". If they do so (unlike FAO) then, for commercial use, benefit-sharing with the country of origin is needed. http://www.absfocalpoint.nl/documents/ABSsystemdescription_EU_gardens.pdf

Finally, what did Dr Visser's ad hominem approach achieve other than further obfuscation? As part of his smoke-screen, Dr Visser makes mock of my Don Quixote approach. Perhaps true, but I am tilting at windmills not in La Mancha but in Rome, windmills driven by hot air and creakily grinding very little corn. But I prefer to be the small child in Hans Christian Andersen's "The Emperor's New Clothes". The emperor had been swindled into wearing a suit of invisible cloth in front of an admiring crowd. The child shouted out to all that the emperor had nothing on. The FAO Treaty is now similarly exposed and Dr Visser's bluster will not hide the nakedness.

My deep concern over the failing FAO Treaty and Svalbard is that they will not put another crust in the mouths of the hungry over at least the next twenty years, if ever. They are an expensive distraction from the real need of plant breeding. In just one year, Britain moved almost $20 million from its development budget to the cuckoo of Svalbard. The legal deviousness of the Svalbard Depositor Agreement, now openly supported by FAO, has undermined the global trust engendered by the CGIAR and the USDA in the untrammeled distribution of seed. This will increase hunger in developing countries.

I have nothing whatever to gain financially from my research on the Svalbard Seed Vault. But I do have an ethical commitment: I have spent several happy years collecting crop seed on small tropical farms and have the very highest regard for peasant farmers who freely gave me their seed and hospitality. Many of these farmers are now being cheated out of their heritage and birthright by FAO and the iniquitous Svalbard Depositor Agreement.